Attorney-General for the State of South Australia v The Corporation of the City of Adelaide & Ors

[2012] HCATrans 233

[2012] HCATrans 233

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide   No A16 of 2012

B e t w e e n -

ATTORNEY‑GENERAL FOR THE STATE OF SOUTH AUSTRALIA

Appellant

and

THE CORPORATION OF THE CITY OF ADELAIDE

First Respondent

CALEB CORNELOUP

Second Respondent

SAMUEL CORNELOUP

Third Respondent

FRENCH CJ
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 2 OCTOBER 2012, AT 10.20 AM

Copyright in the High Court of Australia

____________________

MR M.G. HINTON, QC, Solicitor‑General for the State of South Australia:   If the Court pleases, I appear with my learned friend, MS L.K. BYERS, for the appellant.  (instructed by Crown Solicitor (SA))

MR M.J. RODER, SC:   If the Court pleases, I appear with my learned friend, MS R.F. GRAY, for the first respondent.(instructed by Norman Waterhouse Lawyers)

MR C. CORNELOUP appeared in person.

MR G.O’L. REYNOLDS, SC:   May it please the Court, I appear for the third respondent with my learned friends, MR J.C. HEWITT and MS G.R. RUBAGOTTI.  (instructed by Banki Haddock Fiora Lawyers)

MR T.M. HOWE, QC:   May it please the Court, I appear with my learned friend, MR C.D. BLEBY, SC, for the Attorney‑General of the Commonwealth who intervenes in support of the appellant.  (instructed by Australian Government Solicitor)

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales:   If the Court pleases, I appear with my learned friend, MS A.M. MITCHELMORE, for the Attorney‑General for New South Wales who intervenes in the proceedings.  (instructed by Crown Solicitor (NSW))

MR S.G.E. McLEISH, SC, Solicitor‑General for the State of Victoria:   If the Court pleases, I appear with my learned friend, MR A.D. POUND, for the Attorney‑General for Victoria intervening.  (instructed by Victorian Government Solicitor)

MR G.R. DONALDSON, SC, Solicitor‑General for the State of Western Australia:   May it please the Court, I appear with my learned friend, MS R.B. PHILLIPS, for the Attorney‑General for Western Australia intervening.  (instructed by State Solicitor (WA))

MR G.J.D. DEL VILLAR:   May it please the Court, I appear for the Attorney‑General for Queensland intervening.  (instructed by Crown Law (Qld))

MR R. MERKEL, QC:   If the Court pleases, I appear with my learned friends, MR E.M. NEKVAPIL and MR N.M. WOOD, for the Human Rights Law Centre, seeking to intervene as an amicus.  (instructed by DLA Piper Australia)

FRENCH CJ:   Mr Merkel, we have read your summons and supporting affidavit and we have also read Mr Corneloup’s affidavit in response.  You will have leave to intervene, but it will be granted on the basis that we receive your written submissions only.

MR MERKEL:   If the Court pleases.

FRENCH CJ:   Thank you.

MR MERKEL:   Can I just indicate, your Honour, that we have distributed a short outline which we would seek to add to the written submissions if we might ‑ ‑ ‑

FRENCH CJ:   That can be made available.

MR MERKEL:   ‑ ‑ ‑ and also hand up a volume of statutory material with a road map, in effect, through it which is the material referred to in our written submissions.

FRENCH CJ:   Yes, very well.

MR MERKEL:   If the Court pleases.

FRENCH CJ:   Yes, Mr Solicitor.

MR HINTON:   If the Court pleases.

FRENCH CJ:   I am sorry, there was one other matter before you begin.  There is an application, I think, on behalf of the third respondent for leave to amend the notice of contention.  Is that opposed?

MR HINTON:   It is not opposed, your Honour.

FRENCH CJ:   Leave to amend the notice of contention is granted, accordingly.  Should I add that we would expect – I imagine the order of argument will be the Attorney‑General for South Australia followed by the City of Adelaide and the Commonwealth and State territories and then Mr Reynolds for the third respondent and then Mr Corneloup in person and then your reply.

MR HINTON:   Your Honour, we have had those discussions at the Bar table and that is what we propose to do.

FRENCH CJ:   Very well, thank you.

MR HINTON:   The second and third respondents are members of Street Church.  That is an incorporated association, the objects of which include to preach and minister the gospel in the streets of Adelaide.  Your Honours will find the evidence relevant to that at appeal book page 401 in the fourth affidavit of the second respondent and appeal book page 405 in the fifth affidavit of the second respondent.  Both of those affidavits were filed in support of the challenge made to the by‑law in the District Court of South Australia.

FRENCH CJ: These were to establish a material interest for the purposes of section 276 of the Local Government Act?

MR HINTON:   Yes, your Honour.

FRENCH CJ:   That is not in issue, is it?

MR HINTON:   No, your Honour.  The topics upon which the second and third respondents preach include:

lying, stealing, drunkenness, pornography, homosexuality, same sex marriage, fornication, adultery, abortion, Islam -

I refer your Honours again to the fourth affidavit of the second respondent at page 401 of the appeal book and his fifth affidavit, page 405.  There is also reference to the evidence given by the third respondent in the Magistrates Court during the course of being prosecuted for breach of the by‑law to the same effect to be found recorded in the magistrate’s reasons at appeal book 171.

FRENCH CJ:   This is all background with which we are familiar.  The focus has to be upon the validity of the by‑law, does it not?

MR HINTON:   It does.  If your Honours are familiar, then I will eschew the background and move straight to the by‑law, but one point before I do so and it is important that we make this plain to the Court, the by‑law in the form that it was has been revoked.  That was part of the normal review of by‑laws conducted in 2011.  Our submission is that notwithstanding that the appeal is not moot for this reason.  The third respondent remains convicted of the offence of contravening ‑ ‑ ‑

FRENCH CJ:   When was it revoked?

MR HINTON:   It was revoked on 9 October 2011.  We set that out in our written submissions at paragraphs 52 and 53 and in our annexure at page 20.  Nevertheless, in our submission, the appeal is not moot because there is the conviction for acting in contravention of the by‑law and there is an appeal against that conviction that has been adjourned pending the outcome of these proceedings.  That is made - in the third respondent’s written submissions - abundantly clear at paragraph 7 and, indeed, in our annexure to our written submissions at page 20.  There is also on foot in the Supreme Court of South Australia yet to be resolved proceedings for an injunction.  The grounds for the injunction are the breach of the by‑law in its former form.  Again, they have been adjourned pending the outcome of these proceedings.

I turn then to the construction of the by‑law.  The by‑law is to be found at appeal book page 47.  It was made and passed on 10 May 2004.  That is to be seen at the bottom of page 49 where the signature of the chief executive officer is to be found.

FRENCH CJ:   Just before you leave the question of revocation, I think there is been a replacement by‑law in somewhat similar language, has there not?

MR HINTON:   There has, your Honour.

FRENCH CJ:   That is set out at Part B - page 20, I think, of the legislation which you have annexed to your submissions?

MR HINTON:   Yes, your Honour.

FRENCH CJ:   All right.

MR HINTON:   Again, similar insofar as permission is required.

FRENCH CJ:   Refers to haranguing and so forth.

MR HINTON:   Yes, your Honour, and if Justice Kourakis’ decision remains in place then no one needs permission and that by‑law would equally fall.  “By‑law No 4 – Roads” made and passed on 10 May - that is to be found at appeal book 49, published in the Gazette on 27 May 2004 because four months have to pass before it comes into operation.  The gazettal version is to be found at appeal book 98.  So it comes into operation - passed on 27 May and comes into operation on 27 September 2004.  Looking at appeal book 47 and the by‑law, the first observation I make which will become relevant when I move to the fourth argument of the third respondent’s notice of contention is that in the second line it purports to be made under the Local Government Act 1999.

FRENCH CJ: This is the section 248 point that has been made against you?

MR HINTON: It is, your Honour. The second observation I make at this point is that it purports to be made – fourth line – for the management of roads vested in or under the control of the council. At that point can I indicate that “road” is defined in paragraph 1.6 by reference to the Local Government Act 1999. That Act as it was at the time of the passing of the by‑law is to be found in the appellant’s book of legislation commencing at page 233. The definition of “road” is to be found in section 4(1) at page 254 of the book of legislation. I invite your Honours to read it:

a public or private street, road or thoroughfare –

et cetera.

FRENCH CJ:   This would include a mall?

MR HINTON:   Yes, your Honour.  My second observation drew the Court’s attention to that fourth line there and the words “vested in or under the control of the council”.  At page 410 of the book of legislation your Honours will find section 208(1) of the Act, vesting all “public roads” in the council “in the area of a council”.  “Area” is defined in section 4(1), which appears at page 249.  I refer your Honours also to section 9 of the Act, placitum (a) and placitum (c) at page 260, just to make plain that the council area is as defined in the proclamation of the Governor and section 6 of the Act at page 258 defining the principal role of the council in a number of respects, each relevant to its area.

“Public road”, as we have seen, is defined in section 4(1).  “Private road” is also defined in the same section at page 252.  Control of a private road can only be derived, in my submission, by the council by virtue of the operation of section 192(1).  That is to be found at page 401 of the book of legislation.  The effect of all that, the by‑law is limited to all public roads in the council’s area and to only those public roads and any private roads over which the council has control. 

If I can return to the by‑law, this case, as your Honours are well aware, concerns primarily clauses 2.3 and 2.8.  Clause 2.3 provides that a person requires permission if they seek to engage in one of the identified courses of conduct, but not at an area designated as “Speakers’ Corner”.  Pausing there momentarily, at the relevant time there was no such area designed as “Speakers’ Corner” in the city of Adelaide.

Then there is the second proviso where one is concerned with a “survey or opinion poll conducted by”, et cetera.  The inference there is that there is an attempt, imperfect admittedly, but an attempt to account for the implied freedom.  Clause 2.8 similarly has a proviso - you do not need permission to distribute printed matter if you are doing so “with the authority of a candidate during the course of”, et cetera.

The by‑law does not define “preach”, “canvass” or “harangue”, the critical words relevant to the validity of clause 2.3.  In our written submissions at paragraphs 23 and 24 we offer definitions relying upon the Macquarie Dictionary.  “Preach” means “to advocate or inculcate (religious or moral truth, right conduct, etc) in speech or in writing.”  “Canvass” means “to solicit votes, subscriptions, opinions, etc, from (a district, group of people, etc).”  “Harangue” ‑ ‑ ‑

HAYNE J:   Why would you read “canvass” in that way in this context?

MR HINTON:   For the reason that the intention being to manage roads is to address behaviour where a person seeks to attract the attention of a group of people for the purpose of soliciting a response, perhaps too narrow - “votes, subscriptions, opinions, etc” but “opinions”, of course, is very broad.  “Harangue” is liable to two possible meanings.  We set them out in paragraphs 23, “a passionate, vehement speech; noisy and intemperate address” or “any long, declamatory or pompous speech”. 

HAYNE J:   Do give us an example, Mr Solicitor.  Do give us an example.

MR HINTON:   I hope your Honour Justice Hayne is looking past me and not directly at me.  The former is narrower.  It contemplates “speech in question will be objectionable to its audience”.  We submit in our written submissions that the former is the interpretation that should be accepted and we give our reasons there, those being such an interpretation does not dis‑encourage the participation of local members of the community in the affairs of the community.  It still ensures “accountability of councils” and it still has the capacity to ensure that convenience, comfort and safety are managed.

I do not wish to say anything more about the submission in support of the narrower definition.  It is set out in our written submissions.  The definitions, as we have set them out, accord with those, in my submission, that the Full Court gave to the terms, the Full Court’s definition, so it will be found at appeal book page 471, paragraphs 9 through 11 of his Honour Justice Kourakis’ judgment. 

The definitions that we submit should be given to the words “preach”, “canvass” and “harangue” largely accord with those provided by the third respondent in his written submissions at paragraphs 14 to 16.  Thus, by‑law 2.3 applies only to certain classes of speech.  It would not capture the roadside interview or the impromptu press conference.  It would not capture a speech made in opening an event.  It does not prevent speech generally.  Nor does clause 2.3 prevent a person using other forms of communication - the internet, space in a newspaper, a sign – although there would be, no doubt, other by‑laws with respect to signs – a T‑shirt.  It only burdens particular classes of speech. 

In terms of the implied freedom of political communication which operates on two levels - communication between elector and representative and between electors - this clause bites at the second level, can bite at the first level indirectly if you are preaching, canvassing or haranguing in the streets of Adelaide to attract the attention of your representative, but its primary focus is to the extent that it impinges upon communication, the level of communication between electors.  As for the meaning to be given to clause 2.8, like the Full Court we submit that the words in clause 2.8 do not require elaboration.  That is what the Full Court said at page 471 of the appeal book, paragraph 12.

HAYNE J:   Would you just go back a moment.  You said that it may impinge on communication in a particular way.  Is it important to identify that it affects the matter, using the word “affect” as a neutral term, by identification of place, not by identification of content, but where these things may occur?

MR HINTON:   Yes, your Honour.  In fact, in Hogan v Hinch there is that very important distinction drawn between laws that directly act upon political speech and laws that indirectly act upon political speech.  The test for the validity of the former will be higher than the latter, so to that extent it is important to identify how the by‑law specifically operates upon communication.

FRENCH CJ:   Communication in a road, or on a road, is it not?

MR HINTON:   Yes, your Honour, in the city of Adelaide, defined by proclamation by the Governor.

CRENNAN J:   Are you saying in terms of the distinction to which you just referred that the burden, if such it is, is an incidental one in relation to the freedom?

MR HINTON:   Yes, not direct, incidental, yes - important then to the test applied for the purposes of validity.

KIEFEL J:   Because the purpose of the by‑law is concerned with the regulation of activities upon roads?

MR HINTON: Yes, your Honour, and relying upon section 667(1)9XVI for the comfort, convenience and safety of the inhabitants of the city of Adelaide. To that of course, albeit it pointless in one respect, you add the proviso of Speakers’ Corner and the exception for surveys during an election period, I think, or words to that effect. So it does not apply either to all government land. This by‑law, for example, does not apply to parks and as you could take judicial notice of Adelaide is surrounded by parklands. The parklands include the five squares. This by‑law does not deal with speaking in the parklands, all those five squares. There may well be another by‑law that deals with that, but we are concerned with clause 2.3 and clause 2.8, so a narrow application in the city of Adelaide.

CRENNAN J:   Is Rundle Mall used for vehicles or is it just used for people passing and re‑passing in terms of the definition of the road?

MR HINTON:   The only vehicles allowed in Rundle Mall are either very early or very late to service the various traders - during the commercial hours, if I can put it that way, no vehicles.

HAYNE J:   But is there an attack on the validity of this in its particular application to Rundle Mall?  I know that Rundle Mall is where these events have occurred.  I thought the attack was upon the validity of the by‑law generally.

MR HINTON:   It is, your Honour.

HAYNE J:   Thus its application to any thoroughfare, vehicular or pedestrian.

MR HINTON:   Your Honour is quite right.  The useful thing about speaking about Rundle Mall is that it illustrates the legitimate end.  When you have a strip such as Rundle Mall where all the desirable retailers are, the main shopping strip - you will not find your robes there, but yes, the desirable retailers are - then it is like moths to a flame.  So it illustrates in that respect the very need to manage roads so that, in effect, all who want to go where the people are to preach, canvass or harangue can have that opportunity whilst all who are there for the purposes of business or other purposes can equally go about their business.

The next point I seek to make about both clauses is that they do not prohibit, they regulate.  It is not that you cannot, it is you can if you have a permit, if you have permission.  There are many cases about the difference between “regulate” and “prohibit”.  I do not wish to take the Court to them, but Yanner v Eaton was one example that comes to mind where you are dealing with a regime that provides a means of permission; it is not one of prohibition, but regulation. 

So it regulates, but not for all government land or for all areas of the city to which the public gravitate - only for roads - and only when you want to preach, canvass or harangue, or one of the other identified classes of conduct, or you want to distribute written material, and even then if you are not at Speakers’ Corner, admittedly there is not one, or you do not fall within the other limb of the proviso.

My next point - implicitly the by‑law vests power in someone to grant permission, it does not tell you who that person is and the by‑law does not prescribe – and this is significant as part of our argument – any conditions applicable to an application for permission or to the decision whether or not to grant permission or upon a grant of permission.  If you want to preach, canvass or harangue or distribute written material on a road in the city of Adelaide, not at Speakers’ Corner and not within the terms of the second proviso, then you are burdened by the requirement to seek permission and no more. 

For the purposes of our argument, looking at clauses 2.3 and 2.8, that is significant.  The burden is the requirement to seek permission and that, no doubt, will cause your Honours to think immediately of Wotton’s Case, which I will come to.  As to matters concerning an application for, and grant of, permission and the enforcement of the breach of any authorisation given one must have regard to By‑law No 1.  A copy of By‑law No 1 is to be found at appeal book 113.  Clause 1.1:

“permission” means the permission of the Council given in writing.

Clause 1.2:

The Council may . . . as it thinks fit . . . impose new conditions –

a discretion.  We submit the conditions could not extend beyond the scope and purpose of the by‑law‑making power.  They must be entirely consistent with the scope and purpose.  Clause 2.1 creates the offence of breaching the by‑law and, indeed, fixes the penalty.

These things are imposed by virtue of the operation of by‑law No 1, not by by‑law No 4.  The penalty, your Honours, is dealt with in our book of legislation, section 246(3)(g).  Sorry, 428 of the book of legislation, section 246(3)(g) “maximum penalty” may “not exceed $750” and there is provision for “a continuing offence”.  My point - these things - who you seek permission from, the power of the person who may grant permission, the creation of the offence, the power to impose conditions, et cetera, are imposed by virtue of the operation of by‑law No 1, not by‑law No 4. 

As I have submitted to the extent that by‑laws 4 and 1 vest power in an officer of the council that power must be exercised within the limits of the power that the by‑law may lawfully confer.  As the by‑law making power is limited by the legislative power of the State so too a by‑law must be construed subject to that same limitation.  It must be construed then, subject to the implied freedom of political communication. 

I turn to deal with the legitimate end of by‑law No 4.  It is identified by Justice Kourakis at appeal book page 471, paragraph 8, elaborated upon when he deals with the question of the character of the by‑law at appeal book page 504, paragraphs 125 to 128.  In our written submissions we deal with this at paragraphs 30, 31 and 32.

FRENCH CJ:   The legitimate end on one view could be rather that, as it were, discerned judicially derived from the purpose for which the relevant by‑law is made in terms of its statutory authority to make such a by‑law.  By‑laws can be made for a number of purposes.  One would look to the source of power first to see the purpose, would one not?

MR HINTON:   I do not disagree with that, your Honour.  You can then neatly encapsulate it within that phrase “comfort, convenience and safety”, yes, your Honour; perhaps dissect it more in the paragraphs of his Honour Justice Kourakis’ judgment that I have referred the Court to.  Those are the submissions I seek to make on the construction of the by‑law. 

Before turning to the notices of contention, can I take the Court through the Local Government Acts that will be relevant to deciding this matter, or to the provisions that will be relevant?  There are two:  the Local Government Act 1934 and the Local Government Act 1999.

FRENCH CJ:   Are we concerned, so far as the 1934 Act is concerned, with anything other than 667(1)9XVI?

MR HINTON:   Yes, we are also concerned with 667(1)4I, the nuisance power, and 668, and I will explain that in a moment.

FRENCH CJ:   The 1934 Act was, as it were, gutted, not to put too fine a point on it, by the Implementation Act of 1999, but these powers were simply left standing?

MR HINTON:   Yes, your Honour.

FRENCH CJ:   They were not transitional in any sense, then?

MR HINTON:   No, your Honour.  There was a power in the Implementation Act which we have given your Honours in our –

FRENCH CJ:   There is a regulatory power to cut out more of it, is there not?

MR HINTON:   To repeal, I think it is –

FRENCH CJ:   By proclamation, I am sorry.

MR HINTON:   Yes, your Honour, section 46 of the Implementation Act.  The Implementation Act appears at the book of legislation, 498, section 46.  The only relevant section in this Act for today’s purposes is to be found at 525 and, as your Honour the Chief Justice says, that permits further repeal by proclamation.  The intent upon the enactment of the 1999 Act was to reduce the legislative framework that applied to local government from some 40 Acts.  That is spelt out in the second reading speech which we have provided to your Honours and that is to be found at page 548 of the book of legislation.

If I may take your Honours quickly to the 1934 Act as it was at the time of the making of the by‑law, that version appears in our book of legislation at page 171 and I take your Honours to page 195 to section 667(1).  As your Honour the Chief Justice pointed out to me, we are concerned here with 667(1)4I and 9XVI.  The Full Court upheld the validity of clauses 2.3 and 2.8 on the basis that they were supported by 667(1)9XVI and, failing that, 667(1)9XVI operating on 667(1)4I.  The difference depends upon the construction of 667(1)9XVI and I will take your Honours to that.

There is in this Act, the 1934 Act, no provision governing the by‑law making process.  That was not the case prior to its amendment in 1999.  At 127 we have given your Honours a copy of the Act, as it was immediately before it was amended, to show that it had provisions governing the making of by‑laws.  Those provisions were taken out and put into the 1999 Act and improved, if I could put it that way. 

In particular you will find at page 149, in the version of the 1934 Act immediately before it was amended, a version of section 667, much more expansive in its content. At 164 in sections 668 to 681 you will find the provisions concerning matters of process and limitations on power, et cetera, updated, expanded upon and now to be found in Chapter 12 of the 1999 Act.

Returning to the 1934 Act as it was in May 2004, and to page 197 of the book of legislation, section 668 is important. It picks up and applies the 1999 Act to by‑laws made under the 1934 Act. So those machinery provisions and limitations upon the manner in which the exercise of the by‑law making power was to be exercised, that formerly were in the Act and are now in the 1999 Act, apply to the 1934 Act by virtue of section 668.

Can I turn to the 1999 Act?  As I have said, a full copy of it in the form in which it appeared at the time of the making of the by‑law, 10 May 2004, commences at 233.  I have already taken your Honours to section 6 and the role of the council, page 258.  I refer, your Honours - do not pause at all to read it, but to section 7, the functions of a council - page 258, to section 8; the objectives at page 259.

I have taken your Honours to section 9, the power in the Governor by proclamation to constitute a council and define its area; section 35 at 286, a council as a body corporate.  Section 36 has its general powers and capacities; sections 51 and 52 deal with its constitution; 58 and 59, the role of council members; Chapter 6, starting at 316, meetings, et cetera.  I have taken your Honours to section 192 which deals with the assumption of care, control and management of land by the council, at page 401, and at section 208 concerning the ownership of roads.

At 424 of the book of legislation we find sections 238 and 239 concerning the power on a council to make by‑laws concerning the control of “access to and use of local government land” and in 239 “the use of roads” respectively. I will come back to those provisions. They form part of the arguments on the notices of contention, the argument being that they extract power by virtue of their specific reference to certain matters from the general power to be found in section 667(1)9XVI.

We then come to Chapter 12 which is to be found at page 428 of the book of legislation. This chapter, as I have said, replaced sections 668 to 681 of the 1934 Act and, as I have said, the current section 668 of the 1934 Act would pick it up, subject to a contrary intent, and apply it to by‑laws made under the 1934 Act.

FRENCH CJ:   Your answer to point 4 in the notice of contention is 246(1)(a), is that right?

MR HINTON:   Yes, your Honour.  I will come to that very soon, if your Honour pleases.  The application of Chapter 12 is crucial to many of the arguments raised in the notices of contention.  Section 246(1) contains a power to make by‑laws - a power, we say, as contemplated significantly for the purposes of today by the 1999 Act or another Act or as authorised by regulations made under the 1999 Act or another Act.

Our argument with respect to the point made about section 248(1)(a) is that 246(1)(a) picks up the power to be found in section 667(1)9XVI. It picks it up because that power is one within the contemplation of another Act. Section 246(2) is also important to the notices of contention. It prohibits councils from passing by‑laws that require a person to obtain a licence. The argument is put against us that the permit requirement is the equivalent of requiring a person to obtain a licence and therefore falls foul of section 246(2). I have taken your Honours to section 246(3)(g), the penalty‑creating power. I pass over the remaining sections of 246 and move to 247, principles applying to by‑laws.

FRENCH CJ:   These principles do not go to power, do they?

MR HINTON: They do not and there is no complaint made with respect to them in this case. I turn to section 248. It does go to power. We accept that section 248 operates on the power contained in section 667 of the 1934 Act, as your Honour the Chief Justice has pointed out, subsection (1)(a) is central to one of the arguments raised by the third respondent in his notice of contention.

In section 249 we have the process for the making of by‑laws prescribed. Again, we accept that process applies by reason of section 668 to the 1934 Act. Section 249(4) is important to this case. It forms another of the arguments in the notice of contention. It requires before a by‑law may be made that a certificate in the prescribed form signed by a legal practitioner, et cetera, be obtained. There is a question in this case as to whether or not that was satisfied.

FRENCH CJ:   Now, you have a certificate in electronic form which accorded with the prescribed form but did not bear a signature, is that right?

MR HINTON:   Yes, your Honour.

FRENCH CJ:   That is the point?

MR HINTON:   Yes.  The question is whether or not the Electronic Transactions Act (SA) makes up the slack, if I can put it that way. In section 251, just quickly, there is set a lifespan for by‑laws which has the effect that they reviewed every seven years. I also draw your Honours’ attention to section 270 of the Act, to be found at page 447, significant because it requires the council to establish a procedure for the review of decisions of the council, for council employees and persons acting on behalf of the council. In section 270(2), the review is to be conducted by “a suitable person”. So a refusal, had we got that far in this case, to grant a permit could have been the subject of review under section 270. Significantly, under subsection (3), perhaps not of the greatest of significance actually, but in an event, you cannot charge a fee for a review.

In 271 there is the possibility of mediation avenues via which the desire to preach on matters political and governmental could be thrashed out, if not first understood or sufficiently taken into account as part of the permission process. The last section that I draw your Honours’ attention to is section 276, which sets out the jurisdiction vested in the District Court to hear the second and third respondents’ application, and at 276(5) the powers available to the Court, here in particular, are placitum (e).

Can I turn then to the notices of contention and may I begin with the third respondent’s amended notice of contention and the fourth contention, that being that the by‑laws contravene section 248(1)(a) of the Local Government Act and are, therefore, invalid. The question, in my submission, is whether the Full Court’s decision, which we embrace that the by‑law is supported by the 1934 Act can stand, in light of the fact that on its face the by‑law says it is made under the 1999 Act, in the wake of the command in section 248(1)(a).

If I can take the Court back to the by‑law, the appeal book page 47, as I understand the argument that is put, having regard to that second line in the by‑law, there is an indication given by the council that it was purporting to make a by‑law under the 1999 Act.  That that was its intention is confirmed by the gazettal of the by‑law to be found at appeal book page 98, right‑hand column point 8 of the way down heading:

City of Adelaide
By-law made under the Local Government Act 1999

In further support of the argument against us, as I understand it, is the reference to the certificate, the 249(4) certificate.  That is to be found at page 91 of the appeal book.  There the legal practitioner, Mr Kelly, provides his opinion and refers to the specific powers supporting the by‑law.  He does not refer to the 1934 Act.

FRENCH CJ:   Do you dispute that the by‑law purported to be made under the 1999 Act?  I understand your argument is confess and avoid in the sense that it picks up the power under the ’34 Act anyway.

MR HINTON:   We put two items.  One is confess and avoid, your Honour, is quite right.  The other is the construction of 248(1)(a).

HAYNE J:   Sorry, of?

MR HINTON: Section 248(1)(a). Our submission is the council was of the opinion that it was not exercising power derived from the 1934 Act. But section 248(1)(a) does not direct attention to the opinion of the council, it directs attention to the power and if that is correct ‑ ‑ ‑

HAYNE J:   Well, what work are you giving to the words, “purports to be made”?

MR HINTON:   “Purports to be made” apply to the power under consideration.  It purports to be made under any and all powers that will support it.  If it directed attention to the opinion then you have the rather unusual or perhaps perverse position of, well, what happens if there is no power nominated by the council?  You then go in search, as you would do in the normal sort of case where you are attempting to identify a power for one, by virtue of its character, capable of supporting the by‑law.  Our submission is that 248(1)(a) does no more than state what is the common law, and that is, it must not exceed power conferred, whichever power is capable of supporting it.

HAYNE J:   But, was or can the Act be read as attempting to do away with what once was the practice of this by‑law is made under section blank of the Act, and all other powers thereunto enabling, which was the, I think, common form often found in rules of court as I remember, in effect causing councils to nail their colours to a mast.

MR HINTON:   It is not necessary that it do that because you have the comfort of the certificate in section 249(4) from the legal practitioner.  No need to require a council of people – some perhaps, many not – legally trained to nail their colours to the mast because we have the comfort of the certificate.

HAYNE J:   The certifier would necessarily have to nail his or her colours to the mast, would not they?

MR HINTON:   Yes, true, your Honour, but 248(1)(a) does not direct us to that person’s opinion.

FRENCH CJ:   So, dealing with the power under which the by‑law purports to be made or the Act under which the by‑law purports to be made?

MR HINTON:   The words are “power conferred by the Act”.  That is our first submission.

FRENCH CJ:   But, it seems to be directed to something on the face of the by‑law, does it not?  The by‑law purports to be made under something.  In this case the by‑law says it is made under the Local Government Act 1999.

MR HINTON:   Our submission is it directs you to the power, not to the actual document itself, not to an opinion expressed in a document.  But, if the Court is not with us in that regard then our primary submission is relying upon section 246(1)(a).  This is a by‑law made under the 1999 Act because 246(1)(a) picks up the power in the 1934 Act.  It is a power to make by‑laws that are within the contemplation of another Act.  The other Act, for the purposes of today, we say is the 1934 Act.

HAYNE J:   If that is right, what is the consequence of the absence of reference in the certificate at appeal book 91 to 246(1)(a)?

MR HINTON: No consequence, your Honour. You must have a certificate before you can make a by‑law and you must not exceed power, but no other requirement. The construction, first point that we put on section 248(1)(a) I said that would accord with the common law, just to give your Honours a reference that was recently referred to by the Court in the AEU v Department of Education and Children’s Services Case (2012) 86 ALJR 217 at paragraph 34, the common law position being it does not matter if you mistakenly believe you are acting under one power if of course there is another power that supports what you are doing. Of course, a necessary condition to that is that if you have made a mistake and there is another power, you have still satisfied all preconditions that enliven that power. Here there is no question raised that all the preconditions of section 249 were satisfied.

HEYDON J:   Is section 246 subject to section 248?

MR HINTON:   Yes, your Honour.

HEYDON J:   Well, if it is, does that not knock your fall back argument? If 246 is subject to 248 it means that section 246 gives a power which is open to later qualification or limitation in the statute and section 248 would be an enactment of that kind once you concede that you fail on the first argument that you and Justice Hayne were discussing about five minutes ago.

MR HINTON:   Section 246 subject to 248 – but I do not fail because I still have reference to the power, the power granted by 246(1) being that power there in the 1999 Act.  All I do not have is a, according to the 1999 Act, picking up the 1934 Act.  My submission is I do not need the latter; I identify the power.  What is put against us is that that would mean that you have a by‑law unlimited in scope.  In my submission, no, you do not; you have one still limited by what it picks up.  It is limited by the contemplated power in the other Act and the scope and purpose of it. 

So in no sense is that stricture contained in section 248(1)(a) sidestepped, as my learned friend puts, or a council’s power expanded upon. It is still limited to what is picked up and the normal tests of characterisation would then apply. It must still fall within the scope and purpose and must not offend other limitations set out in section 248(1). The certificate requirement is not undermined. It remains for the legal practitioner to advise. The suggestion is that they cannot advise unless you nominate your power. That would mean to construe section 249(4) as requiring advice limited to considering only that power nominated by the council. It is not open to that construction.

If 246(1)(a) is the answer, it does not frustrate legislative review, that is, not in the nature of judicial review, but that still occurs in the normal way.  Lastly, of course, judicial review can occur in the normal way.

FRENCH CJ: Well, am I right in saying that your position is that this is a by‑law which purports to be made under the 1999 Act because it says so, and if it is made in the exercise of the power under section 667(1)9XVI it is made in the exercise of a power which is, as it were, incorporated by referring 246(1)(a)?

MR HINTON:   Yes.  Section 246(1)(a) picks up 667(1)9XVI.  If the Court accepts that argument then the fourth contention in the third respondent’s amended notice of contention should be rejected.  Can I turn to the second respondent’s notice of contention, which appears at page 534 of the appeal book, and paragraph 3?  This is the 249(4) argument.  The Court will recall that an essential precondition to the making of a by‑law is the provision of a certificate signed by a legal practitioner certifying that in the opinion of that practitioner the council has power to make the by‑law by virtue of the statutory power specified in the certificate, and the by‑law is not in conflict with the 1999 Act.

That section is at page 431 of the book of legislation.  What happened in this case is set out in the affidavit of Paul Kelly, which is at appeal book 345, and the crucial paragraphs are 5 to 15.  The certificate is prepared, it forms the first part of the document containing the by‑law.  It is emailed in that form to the council.  Mr Kelly identifies the particular person, Mr Palumbo.  There is an agreement that the certificate will be received in this way.

The email is to be found at appeal book page 352, sent to Mr Palumbo containing the by‑laws, the Legislative Review Committee Report – that is the LRC – and the report of compliance with national competition policy.  The format of by‑law No 4 as forwarded by email appears at page 368.  Your Honours will see the certificate forming the first half of the page and thereafter “By‑law No 4” follows.  So the certificate was not signed in the conventional sense.

It was forwarded, as we see it there, pursuant to an agreement with a council officer that it would be received electronically in that format, accompanied by a covering email, if you like, indicating that it comes from Mr Kelly, “Associate, Norman Waterhouse” a firm of solicitors.  Can I take the Court to section 9 of the Electronic Transactions Act 2000 (SA).  That is to be found in the book of legislation at page 537.

FRENCH CJ:   Are there any written submissions from either the second or third respondent on this question?

MR HINTON:   None by the third respondent.

FRENCH CJ:   I do not think there is anything in the second.

MR HINTON:   Raised by the second, your Honour.

FRENCH CJ:   But not in the written submissions, only in the notice of contention.

MR HINTON:   No, your Honour, and none with respect to the fourth ground in the notice of contention.  I was going to leave that one - I was not sure - and wait for the reply.

FRENCH CJ:   Yes, all right.

MR HINTON:   Section 9 sets out an alternative means where you are communicating by electronic communication and are required to provide a signature.  Here the certificate – the requirement that it be signed – will be taken to have been met in relation to an electronic communication which is defined in section 4 - page 535 – “if the method is used to identify the person” whose signature is required – if a method, rather – here the covering email – method capable of including the telephone call beforehand – and to indicate that the person’s approval of the information communicated, the email speaks for itself – and having regard to all the circumstances the method was as reliable as was appropriate, et cetera, and, of course, and the recipient consents, and Mr Palumbo did.

Justice Kourakis dealt with this in the appeal book at pages 506 to 509, paragraphs 136 to 152.  At paragraphs 137 to 145 he undertakes an analysis of the provision for the purpose of determining whether or not compliance was a necessary precondition.  He concludes that it is.  We do not take issue with that.  At paragraphs 146 to 148 he sets out what happened in this case, as I have briefly taken your Honours to it. At 149 he sets out section 9.  At 150 to 152 he considers whether or not section 9 was satisfied in this case.

We embrace his Honour’s reasoning and have nothing to add to it.  For the same reasons, if section 10(2) is raised we rely upon those paragraphs, 150 to 152.  As to section 10(3) if that is raised, whilst the document was altered in that the certificate and the by‑law were separated out, for the purposes of the subsequent Council meeting, it was not altered during the course of its electronic communication, which is what section 10(3) is concerned with. 

Those are my submissions on paragraph 3 of the second respondent’s notice of contention.  If your Honours will excuse me.  I am grateful to my learned junior.  There are written submissions on this argument.  It is to be found at page 8 of the second respondent’s written submissions, reproduced in the same form as the notice of contention.

FRENCH CJ:   Thank you.

MR HINTON: Can I turn then to the third respondent’s amended notice of contention and, in particular, to paragraph 1 contention 1 and whether or not the by‑law is supported by a by‑law making power. As I have submitted, we contend that clauses 2.3 and 2.8 are supported by section 246(1)(a), picking up section 667(1)9XVI. Putting to one side the question of the construction of section 246(1)(a), the question is whether section 667(1)9XVI of the 1934 Act is capable of supporting these two clauses. The argument turns on whether it is a freestanding general power or whether it is to be construed as incidental to or limited by the specific enumerated heads contained in section 667.

Section 667 is to be found at pages 195 to 196 of the book of legislation.  Can I take your Honours to it?  My first observation looking at the chapeau is that it is not indicative of any intent to limit the power conferred for the purposes identified.  Secondly, the words “all or any” do not suggest that any of the enumerated purposes thereafter are in any way subordinate, one to another.  Thirdly, when one looks at the paragraphs remaining, 3XVI, 3XXII, XLI, 4, 5 and 7 there is no discernible class or genus of person, activity or conduct in the specific heads of power that would allow one to construe 9.XVI in a manner ejusdem generis.

Turning to the words of 9.XVI itself, the words “for the good rule and government of the area”, like those of “for the peace, welfare and good government” that we hear in other constitutional contexts suggest a grant of broad power and not a power that is incidental or subordinate in some respect. The words “and for the convenience, comfort and safety of its inhabitants” serve to emphasise the general nature and breadth of the power. The ordinary meaning of these words is significantly different to, for example, section 51(xxxiv) of the Commonwealth Constitution, the incidental power.

KIEFEL J:   Can you translate cases dealing with the plenary power, as I think it has been described, of the peace, order and good government provisions in a constitutional setting to a local authority - and delegated legislation to a local authority?

MR HINTON:   No, but my point is to attempt to identify the breadth of the words used to convey that they are something more than incidental in their meaning and their application.

KIEFEL J:   You are focusing upon the source, which is section 667 which itself is supported by the head of constitutional – state constitutional power.

MR HINTON:   Yes, your Honour, so it itself limited by section 22 of our Acts Interpretation Act if that is where your Honour is going ‑ ‑ ‑

KIEFEL J:   Yes.

MR HINTON:   ‑ ‑ ‑ to it cannot exceed legislative power – it cannot exceed the full ambit of state legislative power.

KIEFEL J:   Well, when legislation is made delegating that power in the context of by‑laws to a local authority, it is obviously confined to a geographical area, but it would also be confined by reference to other powers by which a local authority is limited.

MR HINTON:   Yes, your Honour.  The crucial question in the construction of this section is whether or not the specific that we find in 3, 4, 5 and 7 –

KIEFEL J:   Means that you read down the width of the power generally.

MR HINTON:   Yes, your Honour, and what we have is dicta from Justice Isaacs in the Melbourne Corporation v Barry Case presented with a similar by‑law, albeit one for the City of Melbourne, deciding that that by‑law is – the convenience power, as Justice Kourakis calls it, is to be read down.  It confers a power, Justice Isaacs says ‑ ‑ ‑

FRENCH CJ: This is (1922) 31 CLR 174?

MR HINTON:   It is, your Honour, and in particular at 194 at about point 3:

I pass over sub‑sec 22 –

a different source of power, for the purpose of saying something about subsection (37), there to the end of that paragraph.  The content of section 197 subsection is not spelt out in full but you get a flavour of it from the previous page of Justice Isaacs’ judgment, page 193, again at about point 4.  You see “sec. 197”, “37 separately arranged purposes”, and at about point 8:

Finally, the 37th purpose is “Generally for maintaining the good rule and government of the municipality.”

Justice Isaacs concludes that:

It confers a power, not of extending other powers, but of aiding them if need be or of making independent ordinances in matters ejusdem generis with the specific powers of the Act.

The Chief Justice did not consider whether or not subsection (37) supported the relevant by‑law here.  Justice Higgins at 209, 210, the last paragraph on 209 over onto 210 is slightly cryptic in his view but it is clear he is not giving it the broadest interpretation.  Subsequently in Victoria in the cases of Seeligson and Leslie the Court has applied, to a similar by‑law similarly framed, the dicta of Justice Isaacs.  The question then is do we construe 667(1)9XVI in the same way?  Justice Kourakis determined that we do not. 

Before turning to Justice Kourakis’ judgment there is one more authority that I would refer your Honours to, and that is the decision in Lynch v Brisbane City Council 104 CLR 353. The by‑law concerned here was similar to those in Victoria considered in Barry, Seeligson and Leslie.  Here the case concerned an appeal against an injunction granted in favour of the council prohibiting the appellant from preventing them from taking down a stall that he had up without a licence.

The impugned by‑law is set out at page 358 in the judgment of the Chief Justice at about point 8, the words “It runs”.  The by‑law making power is described by Chief Justice Dixon at page 361 of the report, commencing with the second line:

The source of the authority claimed for the ordinance is s. 36.

Subsection (2) of section 36, the content is given at about point 5, and subsection (3) is also given and there it ends with the words:

and generally all works, matters, and things in its opinion necessary or conducive to the good government of the City and the wellbeing of its inhabitants.

Again, generality following a degree of specificity.  At page 362 at about point 5 through to point 8 the Chief Justice points to the general expressions of power as supportive of the by‑law.  At about point 8 there is the reference there to:

expressions of a kind which in such contexts have caused courts difficulty –

Nevertheless, he says:

But they cannot be dismissed for that reason as if they were meaningless or ineffective.

On the balance of pages 362, 363 and over onto 364, his Honour deals with a number of the authorities, some of which I have mentioned; Barry, Seeligson, Leslie.  He concludes, with respect to section 36 at page 364, point 4, it is very different in it is context, he says.  The only real difference, in my submission, is the words that it commences with, which is set there at about point 4:

“Without limiting the generality of its powers”.  It is needless to repeat what has been already said about the manner in which s. 36 is constructed but the course the legislature has taken does not authorise the Court to read the wider words of sub‑s. (2) down severely as if they were a vague and almost nugatory “et cetera”.

The primary difference between what we have and what was considered in Lynch is those words “without limiting the generality of its powers”.  But we have a chapeau equally broad, a council may make laws for all or any of the following purposes.  In my submission, the absence of those words “without limiting the generality” does not provide reason to read down section 667(1)9.XVI severely as a vague and almost nugatory, et cetera.  Justice Kourakis provides a very good reason for not doing so.  He deals with it in his judgment at appeal book 482, paragraphs 50 through to 77.  He traces the legislative history of section 667.  At 484, paragraph 55, his Honour provides his conclusion, having looked at the format of the 1861 Municipal Corporations Act:

Rather, the purpose appears to have been to provide expressly for the regulation of the new emerging needs of modern urban communities.

Breadth is the intent.  The 1861 Act, I will not take your Honours to it, but it is in the book of legislation, and the crucial section, 146 is at page 1, schedule K, at pages 10 to 14.  Justice Kourakis then turns to the 1880 Act at paragraph 58.  His conclusion is to be found in paragraphs 60 and 61, no “intention to limit the powers of the Corporations, but to expand them”.  One difference here, rather than just “generally for” we have “And generally” set out in paragraph 59.

FRENCH CJ:   These conclusions in the end are at 95 and 96, are they not, after reviewing the authorities?

MR HINTON:   They are, your Honour.  We provide in our book of materials the relevant sections of the various acts so that your Honours can trace the journey that Justice Kourakis has taken.  But your Honour is quite right.  The conclusion is at 95 and 96.  But there is one further significant point that Justice Kourakis makes at paragraphs 76 and 77 related to something your Honour the Chief Justice said earlier and that is the 1934 Act being gutted.  The movement is to generality.  With every change legislation has to be construed afresh and in the movement, in the gutting of the 1934 Act, there arises good reason to construe the convenience power, as Justice Kourakis called it, broadly. 

HAYNE J:   In the course of his Honour’s discussion of what he describes as the convenience power does he refer directly to the fact that the convenience in question relates to the use of thoroughfares, or rather roads, as defined?

MR HINTON:   Yes, your Honour.

HAYNE J:   Where?

MR HINTON:   If memory serves me correctly ‑ ‑ ‑

HAYNE J:   There is a reference in paragraph 69, but beyond that:

preaching, singing or hooraying in city streets.

MR HINTON:   Yes, your Honour.  He does not in this portion of the judgment refer to roads, as I recall, no.  At 87 – not in answer to your Honour Justice Hayne’s question – but at 87, moving on, there is the conclusion that his Honour arrives at, leaving to one side Justice Isaacs’ dictum.  Sorry, there is the conclusion as to the application of that dictum – and, at 98, the ultimate conclusion.

The convenience powers extends to regulating conduct which, having regard to the considerations I have mentioned –

those immediately above, identifying the municipal concerns for which the general power authorises by‑laws, et cetera –

is properly a matter of municipal concern and which, if left uncontrolled, will materially interfere with the comfort –

et cetera.  For the reasons given by Justice Kourakis, in our submission, the approach of Chief Justice Dixon in Lynch is the preferable approach and the by‑laws – clauses 2.3 and 2.8 – are supported by section 667(1)9XVI. If the Court is with us in that regard, then the first contention of the third respondent’s amended notice of contention should be dismissed. If the Court is not with us, there remains one further hurdle for the second and third respondents.

If Justice Kourakis’ construction of 667(1)9XVI is rejected and Justice Isaacs’ dictum in Barry is applied, there is the question of whether or not the by‑laws are supported by 667(1)9XVI, operating on the nuisance power in 667(1)4I in the fashion described by Justice Isaacs.  At 481 of the appeal book, paragraph 43, Justice Kourakis concludes that the nuisance power, as he calls it, 667(1)4I, does not directly support clauses 2.3 and 2.8.  We take no issue with that.  At 503, paragraph 120, his Honour comes back to the nuisance power.  There, the reference to Leslie is a reference to page 496, paragraph 94 of his judgment.  And, that is an application of the dictum of Justice Isaacs in Barry.

Those by‑laws are then not directly supported by the nuisance power but they aid the nuisance power in a matter ejusdem generis.  So there is the alternative basis upon which his Honour holds they can be supported.  They are my submissions on the first contention in the third respondent’s notice of contention. 

There are two other arguments raised in the second respondent’s notice of contention, paragraph 1 and paragraph 2.  These turn on a question of the construction and application of sections 238 and 239 and their interrelationship with 667 and, indeed, 246(2) and its application potentially to the by‑laws.

With respect to the first argument, I can be brief here.  The question is one of construction requiring a consideration of whether sections 238 and 239 extract power from section 667(1).  Justice Kourakis deals with this question at appeal book page 475, paragraph 23, and in greater detail – that being the summary of his conclusion – at 503, paragraphs 121 to 123.  We are content to rely upon what Justice Kourakis has decided and his reasoning. 

With respect to the second contention in the second respondent’s notice of contention, this concerns section 246(2) and the question of whether or not what we have is the imposition of a licence as opposed to a permit.  Justice Kourakis deals with this question at page 475, paragraphs 24 to 26, and 505, 130 to 136.  Again, we are content to rely upon his Honour’s treatment of that question. 

That leaves me with the third respondent’s amended notice of contention, clauses 2 and 3, to deal with.  The question is whether the by‑laws, the clauses, are invalid, generally speaking for want of reasonableness.  Reasonableness, as your Honours will know, is a test for determining the character.  It is of assistance particularly where we have a purposive power.  Here we are dealing with a purposive power, a convenience power. 

The question is whether the impugned law could reasonably have been adopted as a means of attaining the ends of the power.  If it could not, there has been no real exercise of the power.  I take that test or I take the source of that test to be the judgment of Justice Dixon, as he then was, in Williams v Melbourne Corporation 49 CLR 142 and in particular at page 155, the second line, to about point 4. It could not reasonably have been adopted as a means of attaining the ends of the power. May I then refer your Honours to South Australia v Tanner 166 CLR 161 at 165 where four Justices embraced that test:

whether the regulation is capable of being considered to be reasonably proportionate to the . . . purpose.

HAYNE J:   Sorry, what line and whereabouts?  Page 165 where?

MR HINTON:   Page 165, the paragraph commencing “In the course of argument”.  That was the test, of course no one disputed it, but that was the test applied, drawn from Justice Deane in the Tasmanian Dams Case and, of course, going back to Justice Dixon in the Williams Case.  I do not take your Honours to it, and I apologise, it is not on our list, but all Justices in Richardson v Forestry Commission 164 CLR 261, applied the Williams test in the case of determining whether or not a law fell within the external affairs power.  The relevant pages are 289, 303, 311 to 312, 324, 336 and 346. 

So the test where we are concerned with the character of a law is one of looking to the operation and again we are concerned with the purposive power, looking to the operation of the law and asking whether it could reasonably be considered appropriate and adapted to the purpose of the power.  Justice Gummow, in the case of the Minister for Resources v Dover Fisheries 116 ALR 54 - if I could take your Honours to that, at pages 65 to 67, discusses the evolution of this test in Australia, referring to the authority.

CRENNAN J:   I think that is also reported in the Federal Court Reports.

MR HINTON:   I am sorry, your Honour, we do not have the authorised – we should have had it, I am sorry.  He states the test in the same terms I have, and unfortunately we do not have paragraph numbers either, at page 67 of the Australian Law Report, line 16.  The previous full paragraph is important in terms of its content of the characterisation test for a purposive power.  As a test of characterisation so stated it appropriately confines the role of the judiciary by allowing that degree of tolerance or that margin as to the choice of the manner in which a legitimate end will be pursued. 

In this case then, just dealing with the question of character, the question can be framed in the following terms.  Does the by‑law, do the two clauses involve such an actual suppression of the use of roads for preaching, canvassing, haranguing and the distribution of written material as to go beyond any restraint which could reasonably be adopted for the purpose of preserving the convenience, comfort and safety of the city’s inhabitants - go beyond any restraint which could reasonably be adopted for that purpose.

Now, if I can take your Honours very briefly to the Lynch Case – that is Lynch v Brisbane City Council (1961) 104 CLR 353 – I think I probably need, in the light of my learned friend’s analysis of this case, to take your Honours briefly to the bottom of page 363, where Sir Owen Dixon, after referring to the ultimate provenance of provisions in this form – that is the Municipal Corporations Act 1835 – refers to the decision of the Full Court of the southern capital in Leslie v City ofEssendon and he notes that the powers considered very fully by three judges in, as he says:

learned judgments giving the history of the subject which will repay study.

His Honour then goes on to note the restrictive interpretation which was given to the power in that case and, I submit, quotes the statement at about point 2 on page 364 from Justice O’Bryan, with evident approval.  Justice O’Bryan, as he is there quoted, talked about:

a power to make by‑laws for one purpose only –

and, of course, that is not the case here - having to:

be interpreted in a very different way from a power expressed in like language but which is preceded by a power to make by‑laws for thirty‑two separate and distinct purposes, all or most of which are concerned with the good rule and government of the municipality.  Apart from any authority, I would think it is impossible as a matter of ordinary interpretation to give to –

I interpolate, the convenience –

its full and natural meaning as though it appeared in a statute without any specific powers preceding it.”

He says:

I would think that it is impossible as a matter of ordinary interpretation to give to [the convenience power] its full and natural meaning as though it appeared in a statute without any specific powers preceding it.

Sir Owen then notes that the context in this particular case is very different and we perhaps do not need to note more about that context other than to note from the headnote on page 353 that there were very few powers at all there and there was more than one reiteration by the legislature that the nominating of specific powers was not to limit the generality of the other powers including the convenience power.  But there is an obvious lead‑in, I submit, for anyone looking at this topic in a situation which is more akin, in terms of statutory context, to the decision in Leslie’s Case.

I would like to look at that case to conclude today very briefly.  I will try and take your Honours briefly to the most important bits and I will not be very long about it.  This is the decision in Leslie v City of Essendon [1952] VLR 222, a decision of Justices O’Bryan and Sholl, and also with a judgment from Mr Acting Justice Coppell. Now, in that case there is a quotation at 226, at about point 6, which is the quotation which Sir Oxen lifts and quotes in Lynch’s Case, but it is also important to note what the High Court had said in a couple of earlier cases, and that is clear from page 227 at about point 3 where there is a quotation from Justice Isaacs decision in Barry’s Case, where he said this:

It –

that is the convenience power –

confers a power, not of extending the other powers, but of aiding them if need be or of making independent ordinances in matters ejusdem generis with the specific powers of the Act.

Further down the page, Justice Higgins is quoted as saying:

that full effect can be given to the general power . . . without treating it as enabling the council to destroy the common law right of walking in procession.

Justice O’Bryan also notes an adoption by Mr Justice Starke of Justice Isaacs’ judgment, relevantly in Williams v Melbourne Corporation – this is about point 6 on the page – where Justice Starke said that –

These powers . . . are separate and independent, and not restrictive one of the other.  But the power to make by-laws for the purposes of maintaining the good rule and government of the municipality “confers a power not of extending the other powers, but of aiding them if need be or of making independent ordinances in matters ejusdem generis with the specific powers of the Act.”

Just pausing on that page, there are three themes there; the ejusdem generis use, not extending the other powers is the other point and thirdly that they can be used to aid other powers.

FRENCH CJ:   Well, on this approach, it is an incidental power plus.

MR REYNOLDS:   Basically, yes, but you have got to keep an eye on whether you would be extending or overriding a limitation in another enabling provision, or you can perform an ejusdem generis operation, which the Solicitor-General for South Australia has disclaimed.  But can I just make this point?  Your Honours will notice that none of these points we have just dealt with on page 227 have been approaches which the Solicitor‑General for South Australia has adopted, instead of which we had what, I submit, is a rather unusual reference to a notion of analogy, that is, using the convenience power in order to make by-laws by analogy, I think he said, with the nuisance power, quoting from Justice Kourakis.

We say that that form of analysis of the convenience power is not supported, certainly by this authority, and not supported by any authority my learned friend has cited and for whatever it is worth, I am not aware, nor are my juniors, of any case which supports the proposition of analogical reasoning of the convenience power.

HAYNE J:   Now, if it is to be ejusdem generis, where is the genus derived from?  Wholly the 1934 Act, or are all powers conferred on local governments by whatever Act?

MR REYNOLDS:   Yes. It is an interesting question, with respect, that your Honour raises. I would submit that given the operation – I think it is via section 668 in the 1934 Act – that it could be ejusdem generis with the powers derived from any Act. But as I say, that is not an argument which has been presented to your Honours. Indeed, the Solicitor‑General for South Australia, as I understood him – and this is my note – disclaimed an argument based on the ejusdem generis principle. Chief Justice, I see the time, if that is convenient.

FRENCH CJ:   Yes, all right.  The Court will adjourn until 10 am tomorrow.

AT 4.14 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 3 OCTOBER 2012